I will try to be brief, in order to allow colleagues to get in. First, I wish to say that the Bill overall is fundamentally flawed, unworkable and unamendable. That is the strong view we have heard from stakeholders—academics and, most importantly, the victims sector in Northern Ireland. There are alternatives, despite the accusations from many in this House that there is no alternative to this Bill; I appreciate that Stormont House may well not be an option that people currently favour in some regards, but Stormont House with some tweaks, based upon the recent Northern Ireland Office consultation from 2019, is a potential way forward. Indeed, Stormont House implementation was mentioned within New Decade, New Approach as recently as January 2020.
I also say, with a heavy heart, and in the knowledge that this will find opposition from a number of people, that the current status quo in Northern Ireland is messy. It is piecemeal, selective and not a comprehensive approach to legacy, but even that is better than this Bill, because at least there are some mechanisms that are achieving some results for some people. We need to do better, but what is in the Bill takes us down a different avenue. The Bill is not article 2-compliant. The reviews are hard-wired
into the entire Bill, rather than investigations. This is more than simply a case of language; we have thought about trying to amend the Bill to change the word “review” to “investigation” but that itself would not make it article 2-compliant. We also need to address serious issues regarding independence; there are step-in powers for the Secretary of State across a very broad front.
I wish to focus particularly on immunity and what is, in effect, a de facto amnesty, as that is a central issue for me. With the support of the Committee, we hope to have a Division on whether clause 18 should stand part of the Bill; we think it is a fundamental point of principle that the Committee should divide on, because the issue of immunity goes right to the heart of why this Bill is viewed as unacceptable by so many people. The test for immunity in the legislation is extremely low; it is inherently subjective; there is a presumption in favour of it being granted; and it is framed around the interests of the perpetrator rather than the victim. Those are the four key reasons why immunity should not be proceeding.
In the rare event that the panel does not grant immunity, the question as to what happens then is still very much up in the air. People talk about investigations happening and potential files going to the Director of Public Prosecutions, but that is very much a theoretical prospect, because there is no investigative arm that will do that work in practice. In addition, any statements given to the panel are not given under caution and so they cannot be the basis of an investigation. An investigation will have to be from first principles. As we know from other examples of the legacy process as it stands, that will seriously complicate the prospects of any prosecution actually happening.
There are quite a few issues with the mechanics of the ICRIR that I could go into, but I want to make a broad point. This body could very much be a white elephant—and an expensive one. There is no real incentive for perpetrators to come forward to it, and they might do so only when there is a genuine risk of action against them, so it is hard to see exactly when and how that will happen.
Equally, victims might not engage with this process, and there is a major question mark as to whether they will see it as legitimate. They might not wish to take the risk of seeing a perpetrator associated with the loss of their family member receiving immunity; that might be a very difficult prospect for them, and that might well deter people from going forward.
The Secretary of State also has the option of arbitrarily closing the process at any point. Again, that gives no confidence about the longevity of the process. The commission is there to create an historical record, but there may well be so many gaps that the process becomes pointless. There are also issues about what are relevant materials and how those are defined, and the definition is seen as incredibly loose.
We look forward to having a Division on clause 18; it sets out a key principle, and it is important that the Committee gives its view on it.